Supreme Court Hears Argument in USERRA Case

Andrew Gonyea
Communications Assistant

The Supreme Court heard oral argument yesterday in the case of Army Reservist Sgt. Vincent Staub, who alleges he was fired from his job as an angiography technologist because of anti-military bias by his former employer, Proctor Hospital.

For background on this case, please consult the following resources:
* Law Review 0922: Is Personal Animus Discrimination? A USERRA case may be headed to the Supreme Court.
* Law Review 0922 Update: Supreme Court Agrees To Review Unfavorable 7th Circuit Case

* RELEASE: Supreme Court takes on Reservist’s Reemployment Rights Case; ROA to Brief

Over the course of the argument Justices honed in on a couple important points of contention: deciding what constitutes a “motivating factor” as it is written in USERRA, and the “Cat’s Paw” argument, which was used by the 7th Circuit Court in ruling against Staub.

Staub’s attorney, Prof. Eric Schnapper, and Eric Miller, Assistant to the Solicitor General, noted that under USERRA, military status has only to be a “motivating factor” in the employer’s decision to terminate the employee. Therefore, because the individual who made the final decision to terminate Staub had been influenced by supervisors who were “out to get” Staub because of his military status, military status was a “motivating factor” in the decision, making the termination unlawful.

Justices Alito and Kennedy found that reading of the rule “sweeping.” Alito noted that the individual who terminated Staub held no anti-military bias herself, and explained, using a hypothetical, that even the smallest factor in a good-faith decision to terminate an employee, such as one performance review out of dozens, could potentially open up an employer to a USERRA lawsuit, even if the decision-maker made every effort to determine the validity of those reviews. Alito expressed his opinion that the natural reading of “motivating factor” in USERRA, though not ideal, is that it is a factor which directly affects the person who makes the decision to terminate.

Along those lines, the “Cat’s Paw” argument used by the 7th Circuit Court and supported by Proctor’s legal team is that the unbiased individual who made the decision to terminate Staub would have had to be singularly influenced by biased supervisors in making her decision to have committed unlawful discrimination. Chief Justice John Roberts and Justice Sotomayor took issue with the “Cat’s Paw” test because it moves too far in the other direction, heightening a “motivating factor” as written in USERRA into what Roberts termed a “domination-motivating factor.” Sotomayor noted an unbiased individual who makes a termination decision may not be overwhelmingly influenced by a biased individual, but still relies in good part on those who are delegated supervisory responsibilities to provide recommendations for action. Justice Scalia told Proctor’s lawyer it would be difficult to prove to the Court that a motivating factor refers only to motive on the part of the person who made the decision to terminate, whether that person is 1) traditionally the decision-maker, or 2) became the de facto decision-maker by exercising “singular influence” over the traditional decision-maker.

The Supreme Court may send this case back to the 7th Circuit due to the problematic “Cat’s Paw” argument, and specifically the requirement for “singular influence.” Also, due to Congress’ expressed intent to have USERRA construed liberally in favor of the veteran, the Court could rule narrowly in favor of Staub without providing a new precedent for other federal workplace anti-discrimination laws.

The Supreme Court’s decision will likely be issued in the spring of 2011.